Request By:
Mr. Charles D. Wickliffe
Attorney
Executive Department for
Finance and Administration
Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The office of commonwealth's attorney is vacant in Daviess 1 and Letcher counties. In order to continue the prosecution of crime in those districts while the vacancies remain unfilled, the Attorney General appointed two special assistants pursuant to KRS 15.100.
For a while, those two special assistants to the Attorney General were paid out of funds transferred from the Governor's Contingency Fund to this office [our 100 account]. The personal service contracts with these two men cover a period up through June 30, 1977. The contingency fund money transferred over here was exhausted at an early stage under these contracts. This office recently wrote a letter to the Executive Department for Finance requesting that sufficient accumulated fees of the offices of the commonwealth's attorneys for the two counties of Letcher and Daviess be transferred to the Department of Law in order that the salaries of the two special assistant attorneys general appointed to prosecute cases in those districts can be paid. Since you are unaware of any authority authorizing such a transfer, you requested this office to study the matter and advise you of any statutory authority for such a transfer.
KRS 64.510 presently deals with compensation of commonwealth's attorneys, including fines and forfeitures and percentages thereof payable toward commonwealth's attorneys' compensation out of the state treasury. See KRS 28.170 requiring the circuit court clerks to forward such fines and forfeitures to the Executive Department for Finance and Administration. These fines are placed in the general fund of the state treasury. Then they are expended to commonwealth's attorneys from a general fund appropriation. See H.B. 374 (Ch. 55, 1976 Acts) [State Budget] , part I (General Fund) , Item 10, p. 66; and p. 37 of the Kentucky Executive Budget, 1976-78.
It is our opinion that the fines and forfeitures payable to the commonwealth's attorneys as a part of their compensation can only be paid to the elected and serving commonwealth's attorneys. This is supported by the fact that the statutes, relating to the deposit in and the expenditure from the state treasury, speak only in terms of the constitutional office of commonwealth's attorney. Thus the statutes and the budget legislation [including work papers documentation as reflected by the Executive Budget] will not permit the expenditure of such fines or fees to special assistant attorneys general performing the work of commonwealth's attorneys.
Of course money out of the Governor's General Contingency Fund can be expended for this purpose. While it is true that the factual ascertainment of whether an emergency exists under such budgetary legislation devolves upon the Governor, the courts have held that the exercise of his discretion upon the facts should not be disturbed unless for a lack of power or an abuse of discretion.
See
Commonwealth v. Johnson, 292 Ky. 288, 166 S.W.2d 409 (1942). See H.B. 374 (Ch. 55, 1976 Session) [State Budget] , part I (General Fund) , Item 8, p. 65. The language in the budget item relating to the "General Contingency Fund" and of Commonwealth v. Johnson, above, is such that we are constrained to believe that, as a prerequisite for an expenditure from the Governor's Contingency Fund, he must first find that an emergency exists; and his decision in such matter is reviewable by the courts to determine whether there is an abuse of discretion. Of course expenditure for a public purpose is of paramount importance here. See §§ 3 and 171, Kentucky Constitution. In this factual context clearly the Governor was acting properly within his range of discretion when he authorized the expenditure of money out of his contingency fund to ensure that the prosecution of crime in those two circuit courts would go on unabated while the vacancies are being filled.
Footnotes
Footnotes
1 We understand this vacancy has been filled.